Citation Nr: 0207493
Decision Date: 07/10/02 Archive Date: 07/17/02
DOCKET NO. 99-08 459A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to a disability rating in excess of 20 percent
for service-connected diabetes mellitus, on appeal from the
initial grant of service connection.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Counsel
INTRODUCTION
The veteran served on active duty from September 1950 to
September 1953 and from November 1953 to November 1970.
This case comes to the Board of Veterans' Appeals (Board) on
appeal of a November 1998 rating decision of the St. Louis,
Missouri, Regional Office (RO) of the Department of Veterans
Affairs (VA), which granted service connection for diabetes
mellitus, rated 20 percent disabling. The veteran appealed
the initial 20 percent evaluation. Fenderson v. West, 12
Vet. App. 119 (1999). This case has been advanced on the
docket because of administrative error that resulted in
significant delay in docketing the appeal. See 38 C.F.R.
§ 20.900(c) (2001).
The veteran's representative has, in his brief on appeal,
raised the issue of entitlement to service connection for
chronic renal insufficiency. Because renal insufficiency is
contemplated in the rating criteria for diabetes, as
discussed herein, the Board will not refer that issue to the
RO, as it is an inherent factor for consideration in rating
the veteran's diabetes.
FINDING OF FACT
Diabetes mellitus requires insulin and restricted diet and is
manifested by renal insufficiency evidenced by albumin
without casts in the urine.
CONCLUSION OF LAW
The criteria for a rating in excess of 20 percent have not
been met at any time since the grant of service connection.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3,
4.7, 4.14, 4.115a, Diagnostic Code 7541, 4.119, Diagnostic
Code 7913 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
During the pendency of this claim, the law regarding the
Department's duties to provide notice and assistance changed
with the enactment of the Veterans Claims Assistance Act of
2000 (VCAA) and adoption of implementing regulations. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West Supp.
2001); 66 Fed. Reg. 45,620-45,632 (Aug. 29, 2001) (to be
codified as amended at 38 C.F.R. §§ 3.102, 3.156, 3.159,
3.326).
The question the Board must now address is whether there is
any duty of assistance or notice required by the new law that
has not already been substantially completed in this case,
notwithstanding that such assistance may not have been
required under the former law, and, if not, whether there is
any prejudice to the veteran in the Board's consideration of
this question without referring it to the RO. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.
There is no issue as to substantial completeness of the
veteran's application in this case. 38 U.S.C.A. § 5102 (West
Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to
be codified as amended at 38 C.F.R. § 3.159(a)(3), (b)(2)).
He has appealed the initial disability rating assigned on the
grant of service connection, and no specific form is
required.
He has been advised of the information and evidence that
would support or help substantiate his claim in development
letters dated August 14 and 15, 1997. He was told of the
evidence the RO would request for him on his execution of
authorizations and of his option to help in obtaining the
records himself. These letters satisfied VA's requirement to
inform the veteran of evidence necessary to substantiate his
claim. 38 U.S.C.A. § 5103 (West Supp. 2001); 66 Fed. Reg.
45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. § 3.159(b)(1)).
The RO requested records of which the veteran notified it and
associate his service medical records with the file. 38
U.S.C.A. § 5103A (West Supp. 2001); 66 Fed. Reg. 45,620,
45,630-31 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. § 3.159(c). VA notified him of the records
received in a rating decision of October 1997, statement of
the case (SOC) in February 1998, rating decisions of November
1998 and May 1999 and supplemental SOCs (SSOC) of May and
October 1999. 38 U.S.C.A. § 5103A(b)(2) (West Supp. 2001);
66 Fed. Reg. 45,620, 45,631-32 (Aug. 29, 2001) (to be
codified at 38 C.F.R. § 3.159(e)). The veteran has not
indicated that there are any other records that might be
pertinent to his claim.
In addition, he has been accorded three VA examinations
during the pendency of this claim. Together they provide an
adequate medical record. At this time, nothing in the record
suggests that additional examination or opinion is necessary.
38 U.S.C.A. § 5103A(d) (West Supp. 2001); 66 Fed. Reg.
45,620, 45,631 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. § 3.159(c)(4)).
There is no prejudice to the veteran in deciding his claim on
the merits, because he has been told what the requirements
are to establish entitlement to higher evaluations, has been
provided ample opportunity to present evidence meeting those
requirements, and has had the assistance of the RO to develop
every possible source of evidence or information that might
substantiate his claim.
There is likewise no prejudice to the veteran in the Board's
consideration, without remand to the RO, of whether the
requirements of the VCAA have been substantially met by VA.
As discussed above, every possible avenue of assistance has
been explored, and the veteran has had ample notice of what
might be required or helpful to his case.
The Secretary having already provided every possible
assistance indicated by the record or assertions of the
veteran, there is no reasonable possibility that return of
the claim to the RO for further efforts to assist would raise
any reasonable possibility of substantiating the veteran's
claim. Remand for the RO to address the requirements of the
Act in the first instance would serve no practical purpose.
VA has discharged its duty under the VCAA and the Board may
reach the merits of this appeal
II. Analysis
Service connection for diabetes mellitus was granted in a
November 1998 rating decision. A 20 percent evaluation was
assigned, effective the date that the veteran submitted his
original claim for service connection in June 1997. The 20
percent rating was made on the basis of a September 1997 VA
compensation examination that showed a history of diabetes
since 1971. The veteran was placed on insulin in 1977, but
had no eye, kidney or foot problems. He had suffered from a
left-sided stroke with some accompanying right-sided
hemiparesis. His blood sugar readings had recently run
between 140 mg/dl and 200 mg/dl. He denied very frequent
reactions, having them approximately one to two times per
year. He took candy for this. On examination, funduscopic
examination showed normal eye grounds. Peripheral pulses in
the feet were good. Sensation on the right foot was
decreased, but normal on the left. The pertinent diagnosis
was diabetes mellitus, which appeared to be in good control
with no diabetic sequelae. Creatinine levels were pending to
determine if there was any diabetic kidney disease.
The veteran was hospitalized at a private facility on October
5, 1998. At that time, the admission was for complaints of
chest pain related to the veteran's service-connected
cardiovascular disease. It was noted that he had a history
of diabetes. His insulin doses were described as 16 and 8 at
night and 24 and 12 in the morning. On October 5, BUN was
30, and creatinine was 1.8. Clinical microscopy on October 5
showed urine protein (albumin) as greater than or equal to
300 mg/dl, characterized on the report as abnormal. No casts
were noted. Electrophoresis on October 7 showed total
protein, 24 hour urine, as 4928. The reference range was 0
to 150 mg/24 hr. Serum creatinine the same date was 1.6
(high), and creatinine urine 24 hour was 1.1 (within the
reference range). On October 8, BUN was 33 and creatinine
was 1.9.
On cardiac consultation during this hospitalization, the
veteran was assessed, among a long list of diagnoses, to have
congestive heart failure with severe left ventricular
dysfunction and chronic renal insufficiency with creatinine
1.6 to 1.8.
The veteran was transferred to another hospital on October 9
for further evaluation of his heart disease. His past
medical history was noted to include coronary artery
occlusive disease, arteriosclerotic peripheral vascular
disease, insulin requiring diabetes mellitus, hypertension,
renal insufficiency, hypothyroidism, history of congestive
heart failure and hyperlipidemia. Glucose readings were
noted to be high on the first and second days, but within
normal limits on the third day. Chronic renal insufficiency
was noted in his past medical history. Creatinine levels
were high on October 9, 10, and 11, ranging from 1.8 mg/dl to
2.1 mg/dl. BUN was 32 on October 9, 39 on October 10, and 44
on October 11. Protein (i.e., albumin) in the urine was 1017
on October 10. There were zero hyaline casts. On the
discharge summary, congestive heart failure was compensated.
Outpatient treatment records from the veteran's private
physician, dated in December 1998, show that the veteran's
insulin dosage was 28 units NPH subcutaneous and 10 regular
units, subcutaneous in the morning and 14 units NPH, 7
regular in the evening. It was noted that he had been eating
"pretty good" and that his weight had been stable. A
report of treatment in April 1999 showed the insulin dosage
to be the same in the morning, but changed to 16 units NPH
and 8 units regular in the evening. He was not passing any
blood in his urine. No symptoms related to diabetes were
described.
An examination was conducted by VA in September 1999, with
review of the claims file and VA medical records file. At
that time, the veteran was noted to be taking insulin of 20
units NPH and 10 units regular in the morning and 16 units
NPH and 8 units in the evening. He denied any weight changes
and stated that he had a hypoglycemic episode two to three
times per month. During these episodes, he took a piece of
candy, with good results. He did home monitoring for his
blood sugar. He was on a restricted diet but had no activity
restriction, aside from a right-sided weakness related to a
CVA. Basically, however, he did not do much of any activity.
It was noted that he had chronic renal insufficiency
secondary to his diabetes as well as his vascular disease.
Examination was generally unremarkable. The veteran's
extremities showed 1+ pretibial peripheral edema, but no
ulcerations of the feet. There was right side weakness. A
diagnosis of non-insulin-dependent diabetes mellitus was
made, but this is an obvious error.
An heart examination was conducted by VA in August 2000.
Although the examiner noted that the claims file was
unavailable, he did have the veteran's complete VA medical
record file available. Insulin dosages were reported to be
28 units NPH and 10 units regular in the morning, and 16
units NPH and 8 units regular in the evening. On examination
of the skin there were no breaks noted, but there were
multiple .25 cm areas of ecchymosis covering the forearms and
a brownish discoloration of the right lower leg, from the
ankle to the mid-calf. This was not noted on the left leg.
There was no dependent edema of the hands or feet and no
cyanosis or clubbing. There were good pedal pulses,
bilaterally. There was no hair growth on the lower legs.
The pertinent diagnoses were diabetes mellitus, type 2, and
chronic renal insufficiency secondary to diabetes.
This appeal being from the initial rating assigned to a
disability upon awarding service connection, the entire body
of evidence is for equal consideration. Consistent with the
facts found, the rating may be higher or lower for segments
of the time under review on appeal, i.e., the rating may be
"staged." Fenderson, 12 Vet. App. 119; cf. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating
is at issue, the present level of the disability is the
primary concern). Such staged ratings are not subject to the
provisions of 38 C.F.R. § 3.105(e), which generally requires
notice and a delay in implementation when there is proposed a
reduction in evaluation that would result in reduction of
compensation benefits being paid. Fenderson, 12 Vet. App. at
126.
The RO did not specifically consider staged ratings. Before
the Board may consider a staged rating of the appellant's
disability, it must be determined that there is no prejudice
to the appellant to do so without remand to the RO for that
purpose. Bernard v. Brown, 4 Vet. App. 384, 389 (1993). The
RO has, however, addressed, at each stage since the appeal
from the original rating, the appropriate disability
evaluation to be applied as evidenced by the medical
evidence. As the regulations and rating criteria to be
applied are the same, the Board finds no prejudice to the
appellant in considering the issue as one of entitlement to a
higher rating on appeal from the initial grant of service
connection.
The RO, in effect, considered whether the facts showed that
the veteran was entitled to a higher disability rating for
this condition for any period of time since his original
claim. The appellant has been provided appropriate notice of
the pertinent laws and regulations and has had his claim of
disagreement with the original ratings properly considered
based on all the evidence of record. In the particular
circumstances of this case, the Board sees no prejudice to
the veteran in recharacterizing the issue on appeal to
properly reflect his disagreement with the initial disability
evaluation assigned to his service-connected diabetes
mellitus.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.
Separate diagnostic codes identify the various disabilities.
38 C.F.R. § 4.1 requires that each disability be viewed in
relation to its history and that there be emphasis upon the
limitation of activity imposed by the disabling condition.
38 C.F.R. § 4.2 requires that medical reports be interpreted
in light of the whole recorded history, and that each
disability must be considered from the point of view of the
veteran working or seeking work. 38 C.F.R. § 4.7 provides
that, where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation is to be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating is to be assigned. These requirements for evaluation
of the complete medical history of the claimant's condition
operate to protect claimants against adverse decisions based
on a single, incomplete or inaccurate report and to enable VA
to make a more precise evaluation of the level of the
disability and of any changes in the condition. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty
to acknowledge and consider all regulations which are
potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases
for its conclusion.
The evaluation of the same disability
under various diagnoses is to be avoided.
. . . Both the use of manifestations not
resulting from service-connected disease
or injury in establishing the service-
connected evaluation, and the evaluation
of the same manifestation under different
diagnoses are to be avoided.
38 C.F.R. § 4.14 (2001).
The rating criteria for diabetes mellitus are found in 38
C.F.R. § 4.119, Diagnostic Code 7913. For diabetes mellitus
requiring insulin and restricted diet, or; requiring an oral
hypoglycemic agent and a restricted diet, a 20 percent rating
is warranted. For diabetes mellitus requiring insulin, a
restricted diet and regulation of activities, a 40 percent
rating is warranted. For diabetes mellitus requiring
insulin, restricted diet, and regulation of activities with
episodes of ketoacidosis or hypoglycemic reactions requiring
one or two hospitalizations per year or twice a month visits
to a diabetic care provider, plus complications that would
not be compensable if separately evaluated, a 60 percent
rating is warranted. For diabetes mellitus, requiring more
than one daily injection of insulin, restricted diet, and
regulation of activities (avoidance of strenuous occupational
and recreational activities) with episodes of ketoacidosis or
hypoglycemic reactions requiring at least three
hospitalizations per year or weekly visits to a diabetic care
provider, plus either progressive loss of weight and strength
or complications that would be compensable if separately
evaluated, a 100 percent rating is warranted.
38 C.F.R. § 4.119, Code 7913.
Note (1) appended to the rating criteria provides that
compensable complications of diabetes are to be evaluated
separately unless they are part of the criteria used to
support a 100 percent evaluation. Noncompensable
complications are considered part of the diabetic process
under Diagnostic Code 7913.
The evidence shows that the veteran has required insulin and
a restricted diet for the entire period under review. This
establishes that he meets the criteria for his currently-
assigned 20 percent evaluation.
The 40 percent evaluation requires that management of
diabetes require insulin, restricted diet, and regulation of
activities. The veteran does not require regulation of his
activities because of his diabetes. The evidence establishes
that his activities are limited by his service-connected
coronary artery disease with hypertension, evaluated as 100
percent disabling, and his service-connected residuals of
cerebrovascular accident, evaluated as 10 percent disabling.
His limitation of activity is assessed as part of the
evaluation for his cardiovascular disease, and it would be
inappropriate pyramiding to evaluate it as part of his
diabetes. Furthermore, no examiner has assessed that his
activities need be regulated solely as a result of his
diabetes. The preponderance of the evidence is against
assigning a 40 percent rating according to the diagnostic
criteria in Diagnostic Code 7913.
The evidence having failed to establish the criteria for a 40
percent evaluation, they do not support a 60 percent
evaluation, which requires all of the criteria for a 40
percent evaluation and episodes of ketoacidosis or
hypoglycemic reactions requiring one or two hospitalizations
per year or twice a month visits to a diabetic care provider.
While the veteran has reported hypoglycemic reactions of
varying frequency, he has reported that they are controlled
by taking a piece of candy, and he has not required
hospitalizations for them or required visits twice a month to
a diabetic care provider.
The medical evidence shows that the veteran has been assessed
to have chronic renal insufficiency as a residual of his
diabetes, and consideration must be given to whether this
disability might warrant a separate evaluation. Cf. Esteban
v. Brown, 6 Vet. App. 259 (1994) (where separate and distinct
manifestations have arisen from the same injury, separate
disability ratings may be assigned where none of the
symptomatology of the conditions overlaps).
Renal involvement in diabetes mellitus is rated as renal
dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7541
(2001). Renal dysfunction is rated as noncompensable if
manifested by albumin and casts with a history of acute
nephritis; or hypertension that would be evaluated as
noncompensable under Diagnostic Code 7101. (As noted above,
the veteran's coronary artery disease with hypertension is
evaluated as 100 percent disabling. Because hypertension is
evaluated as part of his coronary artery disease, the Board
is unable to use it to evaluate his diabetes without
violating the prohibition against pyramiding contained in 38
C.F.R. § 4.14, discussed above. The Board will not hereafter
include the criteria for hypertension in evaluating renal
dysfunction.)
In order to be evaluated as 30 percent disabling, renal
dysfunction must be manifested by albumin constant or
recurring with hyaline and granular casts or red blood cells.
While the veteran has been noted to have protein (albumin) in
his urine on the laboratory reports associated with his
October 1998 hospitalizations, the laboratory results have
never shown casts or red blood cells. Thus, he does not meet
the criteria for a separate 30 percent rating for renal
insufficiency.
As his renal insufficiency is not at a compensable level, it
may not be assigned a separate rating. See 38 C.F.R.
§ 4.119, Diagnostic Code 7913.
Accordingly, the preponderance of the evidence is against a
higher rating than 20 percent for the veteran's diabetes
mellitus for any time since the grant of service connection.
ORDER
A rating in excess of 20 percent for service-connected
diabetes mellitus is denied.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.